BGB23 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 116
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BGB23 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 116
File number: SYG 784 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 5 February 2025 Catchwords: PRACTICE AND PROCEDURE – application for review of an exercise of power by a Registrar – where a Registrar summarily dismissed the applicant’s judicial review application – application dismissed
MIGRATION – where the Administrative Appeals Tribunal found it had no jurisdiction to review a decision of a delegate of the Minister that it had already reviewed
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143, 254, 256
Migration Act 1958 (Cth) ss 65, 415, 426A, 426B, 430, 430D, 476, 477, 494C
Migration Regulations 1994 (Cth) reg 4.31
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.31, 13.13, 21.01, 21.02, 21.04
Cases cited: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883
BGB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 66
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; [2000] HCA 9
SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 3 February 2025 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr T Guihot Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 784 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGB23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for review of a decision made by a Registrar of this Court, filed by the applicant on 17 January 2025 (review application), is dismissed.
2.The applicant is to pay the first respondent’s costs of the review application, fixed in the amount of $1,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application presently before the Court is an application for review of a decision made by a Registrar of this Court to summarily dismiss the applicant’s judicial review application. The judicial review application relates to a decision made by the Administrative Appeals Tribunal (Tribunal) finding that it had no jurisdiction to review a decision made by a delegate of the Minister not to grant the applicant a protection visa, as that decision had already been reviewed by the Tribunal pursuant to an earlier merits review application. The judicial review application invoked the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicants’ matter was before it for review.
In summarily dismissing the judicial review application, the Registrar was exercising delegated power. An exercise of delegated power is reviewable by a Judge. The application for review of the Registrar’s decision was filed within the timeframe required by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
For the reasons explained below, I have found that the applicant has no reasonable prospect of successfully prosecuting her judicial review application. On a de novo review of the Registrar’s decision, I am satisfied that it is appropriate for the judicial review application to be summarily dismissed. I therefore dismiss the application for review of the Registrar’s decision.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Application for a protection visa and the decision made by the Minister’s delegate
The applicant is a citizen of China who applied for a protection visa in Australia on 30 June 2017. That application was refused by a delegate of the Minister on 10 March 2022.
Various applications for merits review by the Tribunal
On 17 March 2022 the applicant made an application to the Tribunal for merits review of the delegate’s decision. The Tribunal invited the applicant to attend a hearing convened by the Tribunal on 30 November 2022. The applicant did not attend the hearing and on 30 November 2022 the Tribunal dismissed the applicant’s review application pursuant to s 426A(1A)(b) of the Migration Act. The applicant did not seek reinstatement of her application and on 16 December 2022 the Tribunal confirmed the decision to dismiss the application. Pursuant to s 426A(1F) of the Migration Act, the delegate’s decision was taken to be affirmed.
On 2 January 2023, 9 January 2023 at 12:12pm and 9 January 2023 at 1:21pm the applicant made further applications to the Tribunal for merits review of the delegate’s decision.
The Tribunal made decisions in each of these applications that it did not have jurisdiction to review the delegate’s decision. The decision in each matter was dated 30 March 2023 and was in similar terms. It is the decision in relation to the application that was filed on 9 January 2023 at 12:12pm that is relevant for present purposes, as that is the decision that is the subject of the judicial review application.
In finding that it did not have jurisdiction to conduct the review, the Tribunal said at [6] of its reasons:
Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review the delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
The applicant was notified of the Tribunal decision by email sent on 4 April 2023.
Application for judicial review
The applicant filed her application for judicial review on 8 May 2023. The judicial review application contains two grounds, which are reproduced without change:
1.The Department of Home Affairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s65 of Migration Act 1958 properly to assess my case.
The application for judicial review was accompanied by an affidavit which referred to the grounds and annexed a copy of the Tribunal decision. The grounds set out in the affidavit differed slightly to those in the judicial review application in the following respects:
(a)the first ground referred to the Tribunal as well as to the Department; and
(b)the second ground referred only to the Department, omitting the reference to the Tribunal, and also alleged that s 494C of the Migration Act and reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) were improperly applied, in addition to the allegation regarding s 65 of the Migration Act.
The Minister’s summary dismissal application
In a response filed on 31 May 2023, the Minister sought an order for summary dismissal under r 13.13 of the GFL Rules.
The summary dismissal application came before a Registrar of this Court for hearing on 10 January 2025. The Registrar summarily dismissed the judicial review application pursuant to r 13.13(a) of the GFL Rules and ordered the applicant to pay the Minister’s costs fixed in the sum of $4,189.38.
The Registrar published reasons to support his decision: BGB23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 66.
The application for review of the Registrar’s decision
On 17 January 2025 the applicant filed an application for review of the Registrar’s decision. The applicant indicated in her application that she is seeking review of the Tribunal decision and the Registrar’s decision and she sought the following orders:
1.Minister for Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.Minister For Immigration, Citizenship, and Multicultural Affairs and Administrative Appeals Tribunal, the Federal Circuit and Family Court of Australia did not apply the legal provisions of s. 65 of the Migration Act 1958 properly to assess my case, therefore seeking Minister for Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal and Federal Circuit and Family Court of Australia to relief the no jurisdiction decision of 03/04/2023,09/01/2025 about my case and has jurisdiction on my case
The applicant filed an affidavit with her application for review of the Registrar’s decision. The affidavit repeats the grounds as set out in the judicial review application and attached the Tribunal decision and the Registrar’s Order, which are both documents that are already before the Court. The applicant requires leave pursuant to r 21.04(2)(b) of the GFL Rules to rely on this affidavit. In circumstances where the substance of the affidavit is already before the Court in a different form, I declined to grant leave to the applicant to rely on her affidavit filed on 17 January 2025.
RELEVANT LEGISLATION AND PRINCIPLES
Application for review of the Registrar’s decision
In deciding to summarily dismiss the judicial review application under r 13.13(a) of the GFL Rules, the Registrar exercised the power delegated to him by s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.01(1), item 58 in Table 21.1 of the GFL Rules.
Where a Registrar exercises power delegated under s 254 of the FCFCOA Act, a party to the proceeding may apply to the Court for review of the exercise of that power within the time prescribed by the Rules of Court or any further time allowed by the Rules of Court: s 256(1) of the FCFCOA Act.
The prescribed time relevant to this review is set out in r 21.02 of the GFL Rules, which required the applicant to make her application for review of the Registrar’s decision within seven days. The applicant filed her application for review of the Registrar’s decision within the prescribed time period.
The Court’s review of the exercise of delegated power by a Registrar proceeds by way of a hearing de novo, in which the Court may receive as evidence any affidavit or exhibit tendered before the Registrar and may with leave receive further evidence: r 21.04 of the GFL Rules.
Summary dismissal application
In conducting the review de novo, the Court considers for itself the Minister’s summary dismissal application.
The Court is empowered pursuant to s 143(2) of the FCFCOA Act and r 13.13(a) of the GFL Rules to order that a proceeding be summarily dismissed if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
On a de novo hearing of the Minister’s summary dismissal application, the Minister needs to establish that the applicant has no reasonable prospect of successfully establishing that the Tribunal decision is affected by jurisdictional error: see AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 (AIZ22) at [36]. In this regard, the Court need not be satisfied that the applicant’s judicial review application is hopeless or bound to fail for it to have ‘no reasonable prospect’ of success: s 143(3) of the FCFCOA Act; AIZ22 at [36]. Rather, the Court is required to consider whether, on a critical examination of the available material, there is a real question of law or fact which should be decided at trial: AIZ22 at [37].
CONSIDERATION
There are two preliminary matters that are appropriately addressed before turning to consider whether the grounds of the judicial review application give rise to any reasonable prospect of success for the applicant.
Was the judicial review application filed within time?
The first relates to whether the judicial review application was filed within time. The date on the face of the Tribunal’s decision record is 30 March 2023 and the applicant was given notice of the decision on 4 April 2023. Any application for judicial review, to be made within time, was required to be made within 35 days of the date of the migration decision pursuant to s 477(1) of the Migration Act.
The Minister submitted, and the Registrar accepted, that the application for judicial review was made within the time frame prescribed by s 477(1) of the Migration Act. I agree with this assessment, which is based on the date of the decision being 4 April 2023, rather than 30 March 2023.
As explained in the Minister’s submissions, the ‘date of the migration decision’ is to be determined pursuant to s 477(3) of the Migration Act, which relevantly provides:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or
(d)in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
Although the delegate’s decision was a Part 7-reviewable decision, the Tribunal’s decision that it did not have jurisdiction to conduct the review is not a decision made under any of ss 426B(3), 430(2) or 430D(1) of the Migration Act. The Tribunal was not conducting a review of a Part 7-reviewable decision because it found it had no jurisdiction to conduct such a review.
I accept the Minister’s submission that s 477(3)(d) of the Migration Act applies in the present case, and that the date of the written notice of the decision is 4 April 2023. The application for judicial review was made within 35 days of 4 April 2023.
The Court does not have jurisdiction to review the delegate’s decision
The delegate’s decision in this matter is a primary decision within the meaning of s 476(4)(a) and (b) of the Migration Act, as those provisions existed at the time the application for judicial review was filed. This Court does not have jurisdiction to review a primary decision: see s 476(2)(a) of the Migration Act.
To the extent that the applicant by her grounds seeks review of the delegate’s decision, she cannot succeed as it is beyond the power of the Court to judicially review the delegate’s decision.
I treat both the applicant’s grounds as asserting error in the Tribunal decision.
Ground 1
I treat ground 1 as an assertion of legal unreasonableness in the Tribunal decision. The unreasonableness as asserted relates to the Tribunal’s consideration of the applicant’s claims and evidence. The Tribunal did not in fact consider the applicant’s claims and evidence, insofar as they relate to her application for a protection visa, because it found that it did not have jurisdiction to conduct the review.
The Tribunal discharged its statutory functions in respect of its obligation to review the delegate’s decision when it confirmed, on 16 December 2022, its earlier decision to dismiss the applicant’s merits review application that she made on 17 March 2022 when she did not appear at the Tribunal hearing. Having made that decision, which has not been challenged in any judicial review application, the Tribunal no longer had any authority to review the delegate’s decision of 10 March 2022: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; [2000] HCA 9 at [30]; Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 317; SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41]; BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883 at [27]-[41]. I therefore accept the Minister’s submission that the Tribunal was correct to find that it did not have jurisdiction in relation to the application for review made on 9 January 2023 at 12.12pm: see also SZBWJ at [41]; BBD23 at [41].
Having accepted that the Tribunal was correct to find that it did not have jurisdiction in relation to the review application made on 9 January 2023 at 12.12pm, it follows that the Tribunal had no authority to consider the applicant’s claims for protection and the evidence she provided in support of those claims. There is therefore no basis for finding that the applicant has any prospect of successfully establishing that the Tribunal acted unreasonably in its consideration (or non-consideration) of her claims and evidence. I accept the Minister’s submission that the applicant has no reasonable prospect of success in relation to ground 1.
Ground 2
By ground 2, the applicant asserts that the Tribunal failed to properly apply s 65 of the Migration Act. By her affidavit filed on 8 May 2023, the applicant further asserts that the Tribunal failed to properly apply s 494C of the Migration Act and r 4.31(2) of the Regulations.
Section 65 of the Migration Act relates to the Minister’s power to grant, or to refuse to grant, a visa to a person who makes a valid application for a visa. By way of summary, the section requires that the Minister grant a visa to an applicant after considering a valid application for a visa if the Minister is satisfied that all relevant criteria have been met, the grant of the visa is not prevented by certain sections of the Migration Act and that any visa application charge payable in relation to the application has been paid. If the Minister is not so satisfied, the Minister is required to refuse to grant the visa.
In circumstances where the Tribunal did not conduct a review of the delegate’s decision in respect of the merits review application made on 9 January 2023 at 12.12pm, having correctly found that it did not have jurisdiction in relation to the matter, no occasion arose for the Tribunal to exercise the powers and discretions conferred by the Migration Act on the person who made the decision: see s 415(1) of the Migration Act. I accept the Minister’s submission that s 65 of the Migration Act has no application to the Tribunal’s decision that it did not have jurisdiction.
Section 494C of the Migration Act relates to when a person is taken to have received a document from the Minister. The Minister did not provide any documents to the applicant for the purpose of the Tribunal’s decision that it did not have jurisdiction in the matter. Accordingly, that provision has no application to the Tribunal decision.
Regulation 4.31(2) of the Regulations, as in force at the time of the Tribunal decision, required that an application for review of a Part 7-reviewable decision, made by an applicant who is not in immigration detention, must be made within 28 days, commencing on the day the applicant is notified of the decision. The Tribunal did not refer to this regulation in its reasons. The Tribunal’s decision that it did not have jurisdiction turned on its finding that the applicant had previously made a valid application for review of the delegate’s decision and the Tribunal had discharged its statutory functions and therefore the delegate’s decision was no longer a reviewable decision. The Tribunal did not rely on reg 4.31(2) in finding that it did not have jurisdiction in the matter or in finding that the application was not valid. Any reliance on reg 4.31 by the applicant for the purposes of the judicial review application is misplaced and could not assist her to establish jurisdictional error in the Tribunal decision.
I accept the Minister’s submission that ground 2 of the judicial review application, as expanded in the applicant’s affidavit filed on 8 May 2023, has no reasonable prospect of success.
Other matters raised in the applicant’s oral submissions
When invited to make submissions to the Court, the applicant submitted that she plans to discuss her new application with her lawyer and that she has nothing to add. When she was asked specifically about each of the grounds in her application, the applicant submitted that she did not know the details and she would need to check with her lawyer or that she trusted her lawyer. She said that a lawyer represented her at the Tribunal hearing and she trusted him for everything.
When, in response to the applicant’s oral submissions, the Minister submitted that there was no evidence that the applicant had engaged a lawyer at any stage, the applicant sought an opportunity to clarify the position in her reply submissions. The applicant submitted that her Court case was handled by a lawyer so she does not know the details and that she retained a lawyer for the period from 2023 to 2025. She submitted that after her application for a visa was refused, her consequent application for review was handled by a lawyer and she engaged a lawyer to prepare the grounds of application and the affidavit.
There is nothing in the material available to the Court to suggest that the applicant has engaged a lawyer to represent her at any stage. There is nothing on the applicant’s visa application to indicate she was assisted by a lawyer or a migration agent in preparing the application. In each of her four applications for merits review made to the Tribunal, the applicant indicated that she did not have a representative. The Tribunal did not convene a hearing in relation to the merits review application the subject of this judicial review proceeding because the Tribunal found it did not have jurisdiction to conduct the review. In relation to her first merits review application made to the Tribunal on 17 March 2022, the Tribunal convened a hearing but neither the applicant nor any representative attended.
There is nothing in the applicant’s judicial review application to indicate that it was prepared by a lawyer and no lawyer has ever gone on the record for the applicant in this proceeding. Although the applicant submitted that her grounds were prepared by a lawyer, they do not appear to be drafted by a lawyer who has any meaningful experience in Australian migration law. The applicant’s affidavit was witnessed by a Justice of the Peace, not a lawyer.
The applicant’s repeated references to her lawyer having the details in relation to her grounds do not assist her in the application presently before the Court. They do not assert or explain any alleged jurisdictional error in the Tribunal decision and there is nothing to suggest that the applicant was expecting a lawyer to represent her at the hearing convened by the Court on 3 February 2025. If the applicant engaged a lawyer to advise her in this proceeding, without going on the record, then it was incumbent on the applicant to speak to her lawyer prior to her appearance before the Court to get any relevant advice on the grounds in her judicial review application or about her application for review of the decision made by the Registrar. Nothing the applicant said in her oral submissions causes me to believe that she has any reasonable prospect of successfully prosecuting her judicial review application.
CONCLUSION
I am satisfied that the applicant has no reasonable prospect of successfully prosecuting her judicial review application. It is appropriate for the application for judicial review to be summarily dismissed pursuant to r 13.13(a) of the GFL Rules. I therefore dismiss the application for review of the Registrar’s decision.
I invited the parties to make submissions on costs at the hearing. Counsel for the Minister indicated that, in the event the Minister is successful in this application, the Minister seeks costs fixed in the amount of $1,500. I am satisfied that it is appropriate for costs to follow the event and that the quantum of costs sought by the Minister is reasonable. I therefore make an order that the applicant is to pay the Minister’s costs fixed in the amount of $1,500.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 5 February 2025
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